A Judicial Traditionalist Confronts Justice Brennan’s School of Judicial Philosophy

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As a sitting member of the United States Supreme Court, Justice William Brennan issued a memorable call to arms for state courts to use state constitutions to accomplish social transformation. This call to arms was notable for two reasons. First, Justice Brennan asserted that state constitutions are documents with significance independent of the Federal Constitution. Thus, Justice Brennan correctly observed that state constitutional exegesis is a serious, legitimate enterprise demanding more than lockstep interpretations consistent with those given by the United States Supreme Court to the Federal Constitution.

However, the second (and truly pernicious) effect of Justice Brennan’s call to arms was that it served as an encouragement for state courts to use their state constitutions to invade the province of their state legislatures and to advance judicially favored social policy. Justice Brennan’s call for robust judicial policymaking has been widely embraced across the United States, including Michigan. This, in turn, has led to a national debate about judicial philosophy at the state level. My Brennan Lecture is about the debate between two schools of judicial philosophy and the transformation that debate has wrought in at least one state court–the Michigan Supreme Court.

To illustrate my core thesis about judicial philosophy, I begin many of my lectures on the topic with the same question: how does a Rorschach ink blot differ from the Constitution or a law? My answer is that many of those who wear judicial robes do not appear to know the difference. I believe that many judges adhere to a judicial philosophy that allows them to treat constitutional provisions or laws like Rorschach ink blots–indefinite images onto which they project their subjective policy preferences rather than wrestling with the meaning actually communicated by the text. This philosophy has prevailed in many courts, including (until recently) the Michigan Supreme Court, and is the animating principle behind Justice Brennan’s call to arms.

It is worth stating that most of the terms in the popular lexicon describing “judicial philosophy” are unhelpful. They tend to confuse, rather than clarify, the debate over judicial philosophy because they define judicial philosophy in stark political terms. For instance, we hear repeated the phrases “judicial conservative,” “liberal activist,” or “strict constructionist.” I concede that jurists can be motivated by frank political goals that, when acted upon, can have partisan results. However, this is a tendency that can exist among jurists of any political stripe, whether liberal or conservative, or whether Republican or Democrat. Thus, speaking in political terms about judicial philosophy conceals what I believe to be the important underlying issue.

Judicial philosophy, properly understood, is not a partisan belief that is aligned with one political party or ideology. Rather, judicial philosophy concerns a judge’s beliefs about the role of the courts in our constitutional republic. It concerns whether a jurist who interprets constitutional or statutory text is free to apply his or her own extratextual values to them.